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WILLIAM GASTON 

1778-1844 







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ADDRESSES 



AT 



THE UNVEILING AND PRESENTATION 
OF THE BUST 



OF 



William Gaston 



BY THE 



NORTH CAROLINA BAR ASSOCIATION 



Delivered in the Hall of the House of 
Representatives, November 24, 1914 



RALEIGH 
Edwakds & Broughton Printing Co. 
1915 



^340 

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INTRODUCTORY NOTE 

On the evening of November 24, 1914, in the Hall of the 
House of Representatives, at Raleigh, the North Carolina Bar 
Association presented to the State of North Carolina a marble 
bust of the late William Gaston. The bust was copied by 
Frank H. Packer from a plaster cast executed from life in 
1833 by Ball Hughes, now in possession of Judge Gaston's 
granddaughter, Mrs. Isabel Donaldson Bronson, of Summit, 
N. J. Hon. Clement Manly, Chairman of the Committee of 
the Bar Association, presided over the exercises. An address 
on the life and character of Judge Gaston was delivered by 
Hon. H. G. Connor, United States Judge for the Eastern 
District of North Carolina. The bust was presented by Hon. 
J. Crawford Biggs, president of the North Carolina Bar As- 
sociation, and accepted on behalf of the State, by Governor 
Locke Craig. It has been set up in the State Administration 
Building, in which the Supreme Court of North Carolina holds 
its sessions. 



WILLIAM GASTON 



By Henry G. Connor, United States Judge of the Eastern 
District of North Carolina 

The Raleigh Register, of January 25, 1844, announcing the 
death of William Gaston, says: "For forty years he has been 
the ornament of his profession, the idol of his friends, the ad- 
miration of all who knew him, the able jurist, the upright Judge, 
the elegant and accomplished scholar, the urbane and polished 
gentleman, the meek and dignified Christian. He has gone 
down from us, like the sun at sea, leaving the brightness of his 
noon-tide splendor to be equalled by the milder radiance which 
shall linger and play like a halo of beauty around his memory." 

When it is proposed to erect in the building, dedicated by 
the State, to the housing of her Library, the collections of her 
Historical Commission, the portraits of her eminent dead, and 
in which her Supreme Court sits to expound her laws, a me- 
morial of William Gaston, it is but natural that men of this 
day should ask what manner of man he was and in what way 
did he render high service to the State. 

Carlyle says: "If an individual is of sufficient consequence 
to have his life and character recorded for public remembrance 
. . . the public ought to be made acquainted with all of 
the inward springs and relations of his character. How did 
the world, and man's life, from his particular position, repre- 
sent themselves to his mind. How did coexisting circumstances 
modify him from without. How did he modify them from 
within. With what endeavors and efficacy rule over them; 
with what resistance, and what suffering, sink under them?" 
Beginning with our limited vision, and power of expression, 
with what we call heredity, the next, and always interesting, 
question in respect to every human being is that put by the 
Sage of Chelsea. 

William Gaston, on his paternal side, was of the blood of 
the French Huguenot. It is from Jean Gaston, who emi- 
grated from France to Scotland in 1640, that the family traces 
its ancestry. His descendants, in 1662, moved to County 



6 William Gaston 

Antrim, Ireland, and later, with the movement of the Scotch 
Irish of that section, came to America. One of these, Dr. 
Alexander Gaston, a surgeon of the Royal Navy, came to New 
Bern, N. C, in 1765. Margaret Sharpe, an English lady of 
Roman Catholic parentage, came to New Bern on a visit to her 
brothers, where she met and married Dr. Gaston, and from 
this union was born, on the 19th day of September, 1778, Wil- 
liam Gaston. In the characteristics of these lines of ancestry, 
so distinctively and frequently antagonistically marked in their 
history, may be traced many of the mental and moral qualities 
illustrated in the life and character of the son of Alexander 
Gaston and Margaret Sharpe. 

On August 20, 1781, with her infant in her arms, on her 
knees begging that his life be spared, Mrs. Gaston witnessed the 
murder of her husband, by British soldiers and Tories. He 
was among the most zealous and active patriots of New Bern. 
William Gaston, his widowed mother and her infant daughter, 
were the only ones of his race and lineage left in this State, 
by the brutality of the Tories. Mrs. Gaston's brothers died 
prior to the outbreak of the war. The explanation of such 
success as he achieved must, therefore, be sought from other 
sources than the aid of family influence. Although tendering 
his services to his country, when war was threatened with 
France, in 1799, he was never a soldier. During the larger 
portion of his life, his political alignment was with the mi- 
nority party in the State. On a notable occasion he said: 
"Having been trained from infancy to worship God according to 
the usages, and carefully instructed in the creed, of the most 
ancient and numerous society of Christians in the world, after 
arriving at mature age, I deliberately embraced, from convic- 
tion, the faith which had been instilled into my mind by ma- 
ternal piety. Without, I trust, offensive ostentation, I have 
felt myself bound, outwardly, to profess what I inwardly be- 
lieve, and am, therefore, an avowed, though unworthy, member 
of the Roman Catholic Church." For more than fifty years, 
no kinsman of his has resided in this State. 

These facts are referred to for the purpose of emphasizing 
the truth that he entered upon, and throughout his life main- 
tained, none of those relationships, which are supposed and 



William Gaston 7 

usually did, at that time, promote success in a private or pub- 
lic career. That William Gaston, under these conditions, ac- 
quired, and at the time of his death, retained the position in 
the estimation and affection of the people of the State and 
Nation, and that seventy years after his death the proposition 
made by the present Chief Justice, that a marble bust of him 
be placed in the State Administration Building, met with a 
cordial and generous response, is cogent evidence of the perma- 
nence of the impression which he made while living and that 
his memory is held in sacred regard by the people of North 
Carolina. 

It is by invitation of the Committee of the Bar Associa- 
tion, that I am permitted to take the part assigned me in these 
ceremonies. If I shall unduly impose upon your time, I must 
crave your kind indulgence and plead, in extenuation of my 
fault, admiration of his character which it has been my privi- 
lege to study, not in the language of posthumous eulogy, the 
praise of partisan political adherents, or of those bound to him 
by the strong ties of fellowship in a common religious faith. 
The answer to Carlyle's question, as applied to William Gaston, 
is found in a study of the letters written by him to his mother, 
beginning at the thirteenth year of his age and continuing 
until her death, to his family, to his personal and professional 
associates, and to intimate friends, among whom were some of 
the noted men in the State and Nation ; of his legal arguments, 
congressional and legislative speeches, his literary addresses, 
and his judicial opinions. 

It is not merely in the usual formula of eulogy that, in a 
study of the life of William Gaston, must be placed, in pre- 
eminent position, the high qualities, singular devotion of his 
mother, and her influence upon his life. Judge Mathias E. 
Manly writes of her: "Bereft of her husband, in a strange 
land, without relations . . . with heroic courage, she met 
and discharged the trust imposed upon her in a manner which 
marks her as a woman of singular power of mind and strength 
of character. Her son, three years of age, and an infant 
daughter, remained the sole objects of her care. . . . She 
never laid aside the habiliments of mourning; the anniversary 
of her husband's murder was kept as a day of fasting and 



8 William Gaston 

prayer. The great object of her life was the instruction of her 
son, imbuing his mind with the high principles, the noble in- 
tegrity and Christian faith which shone conspicuous in herself. 
Her income being small, she practiced economy to enable her 
to gratify her dearest wish and procure for him a complete 
education." Another says : "The serene energy of her character, 
her pure affection and high sense of duty to her children, 
above all, her profound sentiment of religion, sustained her, and 
when others might have sunk in despair, her conduct rose to 
the highest standard of true, maternal Christian heroism." 

When her son was but thirteen years of age, she sent him 
to Philadelphia, for preparation to enter Georgetown College, 
under the care of the Rev. Mr. Fleming. Her letters to him 
abound with exhortations to piety and the practice of his re- 
ligious duties, coupled with admonitions to industry, fidelity 
to duty and prudence. From Philadelphia, August 25, 1791, 
he writes his mother : "I go to mass at six o'clock in the morn- 
ing, and then I am writing French exercises until eight, when 
I go to English school, where I stay till twelve. What time I 
have before dinner is taken up in reading Latin and Greek. 
From five o'clock in the evening (which is the hour the English 
school breaks up), until six, I go to Mr. Fleming's library, 
where I study such authors as he thinks proper. Three times 
in the week I go to French school, where T stay an hour." In 
his last letter from Philadelphia, he writes: "It would be a 
great piece of ingratitude if I was not to inform you how 
well I am treated by Mr. Fleming — no parent could take more 
care of me than he does." It is interesting to note the en- 
thusiasm, and the prophetic vision of the boy of thirteen, when 
he arrives at Georgetown, November 5, 1791, and is enrolled 
as the first student of the then infant college. He writes: "A 
more beautiful situation than that in which the College is, could 
not be imagined. On a high hill, with a view on one side, of the 
river, on the other, of the town, quite surrounded with trees, 
and everything that could make it beautiful or useful, it 
stands, as if it was made on purpose for the erection of some 
such building." The realization of his vision is found in the 
long, useful and honorable career of this now great University. 

On December 29, he writes: "The College will be opened 



William Gaston 9 

next Monday which, you may suppose, will not he disagreeable 
to me, as I long to be at school." Dr. Plunket, the President 
of the College, writes Mrs. Gaston: "I owe him the justice to 
assure you that he is the best scholar and most exemplary 
youth in Georgetown." Father Fleming says: "I have a pre- 
sentiment that the child to whom you gave birth will become 
your Spiritual Father and be a blessing to his native country. 
. . . I have constantly the most favorable accounts of your 
charming son's progress in virtue and learning." The boy 
writes enthusiastically of the growth of the College, saying: 
"Our College has got a great reputation. From all quarters 
boys come to it." He writes for the following books: "Novum 
Testamentum, Horace, Ainsworth's Latin Dictionary, Lucian, 
Xenophon, a Treatise on the Art of Investigation, Geography." 
We find but little difficulty in concurring with him in the 
opinion that "he is not wasting his time." 

His course at Georgetown was brought to a close, at the end 
of two years, by ill health. His mother became alarmed for 
him in this respect, and called him home. For two years he 
attended the school of the Rev. Mr. Irvine in New Bern, win- 
ning high honors in his studies. He entered Princeton College, 
September 12, 1794, writing his mother that he had arrived 
at the College and had been introduced to several of the stu- 
dents, saying: "They treated me with the greatest politeness 
. . . for complaisance, civility and good breeding I have 
scarcely seen their equals. Their behavior, in short, quite 
charmed me." His letters to his mother, from Princeton, 
abound in expressions of affection and appreciation of the sac- 
rifices made by her to secure to him the privilege of acquiring 
an education. During his term there his mother's dwelling 
was destroyed by fire. He was anxious to leave College and 
begin work at once to help her, but this she firmly refused 
to permit, writing: "Your education is too near my heart to 
take you away before you finish your studies. . . . When 
you finish your studies I mean to sell as much of my stock 
as will pay my debts. If Almighty God be pleased to bless us 
with good health, we have every reason to be thankful and 
happy. I have this consolation, that it was not through 
negligence or extravagance that occasioned these misfortunes. 



10 William Gaston 

I am happy, and hope to be much more so, when I embrace 
my beloved William." 

That the pious Catholic mother was solicitous regarding the 
spiritual welfare of her son is manifest from her constant in- 
sistence that he keep the integrity of his faith. She writes: 
"I hope you correspond with your good friends at Georgetown 
— be very particular in observing their advice and very atten- 
tive to your spiritual exercises that God may bless you in your 
ways." 

We find, among his papers, yellowed with age, a neatly writ- 
ten letter to his sister, full of sage counsel and prudential, 
brotherly advice. On the corner, in the immature handwriting 
of a child, the words: "First letter I ever had from dear 
brother." The correspondence between them is of lively inter- 
est, containing the town news, the doings of the boys and 
girls, with frequent reference to the mother, and expressions 
of affection for her. She gives an account of the disastrous 
fire which destroyed the home. An "exact description" of 
the new house is given, "planned chiefly by mama." "It fronts 
North and South — the West end being twenty feet from that 
fence where the cedar tree and fig bushes are in the bottom of 
the garden. Its North side 26 feet from that fence which runs 
between Mr. Simpson and us. The house will be small as to 
what the other was, being 36 feet by 18 and a piazza to the 
southwards. The foundation is dug and the cellar is to be 
raised with brick, airy and pleasant. Mama proposes leasing 
the front of the lot, when opportunity offers, till you are of 
age, leaving only a gateway that is ten feet opposite the piazza. 
She says that you must not laugh at her for putting her house 
in the garden." Following a description of the kitchen, with 
a reference to the fire, she concludes: "I hope it is all for the 
best." The mother fills the sheet of paper with sound advice 
and saintly counsel. Before the new house is finished, the 
"dreadful storm" came, of which a graphic description is given. 
The chimneys of the new house "being green" were blown 
down. The brother writes of his anticipated pleasure of living 
in "that small house, but to me, the most valuable in the world, 
since it contains two infinitely precious treasures — the tenderest 
of mothers and most amiable of sisters." In this home of 



William Gaston 11 

small proportions and modest pretensions, dwelt those who 
nurtured, and found strength in the nurture, of Christian 
piety and social graces; wrought into the warp and woof of 
their lives the fibrous strength of manhood and womanhood. 
From it came the wife of one of North Carolina's most learned 
and eminent Chief Justices and he, whom another Chief Justice 
declared was "a good man and a great judge." 

The mother, in her last letter before her son's graduation, 
writes: "A friend warrants that you would throw off your 
'bigotry' and 'superstition' before your return. I hope that 
you will return with virtue and piety, the same as you left me 
with only improvement; as you improve in learning and 
knowledge far greater will be your duty to God for all his 
blessings." To this the son replies: "My dear mother will see 
that I have not altogether forgotten her useful and pious in- 
structions or that I have not altogether lost my 'bigotry' and 
attachment to 'superstition.' " He writes immediately before 
the time for his graduation: "I must go to Philadelphia to 
perform my Easter duties." 

At the Commencement of 1796, William Gaston graduated 
at Princeton, with the first bonors of his class, delivering the 
Latin Salutatory. His mother received him to his home "re- 
straining the outburst of maternal joy and, ere she embraced 
him, laid her hand upon his head, exclaiming: "My God, I 
thank Thee," not for the honors he brought, but because "he 
had preserved the innocence of his youth and the practice of 
his religion." When one reflects upon the intensity of the re- 
ligious faith, and the test to which that faith had been sub- 
jected, it is not difficult to understand the gratitude which 
filled the heart, and the joy with which Margaret Gaston lifted 
up her voice in thanks and praise. Sincere, faithful men may 
differ in respect to doctrine and dogma ; such faith and de- 
votion as Margaret Gaston's must ever command and receive 
the profound admiration and reverence of every Christian 
parent. In their possession and exercise are to be found the 
solution of the deepest mysteries of human life, and the strength 
to meet and discharge its duties. Happily, at all times, North 
Carolina has had such mothers, who have given to her service 
such sons. They find the fulness of joy in the consecration of 



12 William Gaston 

their lives to this Divinely appointed work, seeking not to cast 
away the precious privilege of motherhood to enter upon other 
and lower spheres of service. May she always have these noble 
women and may she always honor and hold their memories in 
sacred keeping, grateful for their example, and for the sons 
whom they give to promote her glory, honor and welfare. 

Upon his graduation, Gaston entered upon the study of law, 
under the direction of Francis Xavier Martin, one of the most 
interesting and, in the manner and extent of his achievement, 
remarkable men who came to the State in the early days of her 
history. At eighteen years of age, a native of France, he came 
to New Bern, entirely unacquainted with our language or laws. 
Taking up the trade of a printer, he acquired his education, be- 
coming not only a publisher, but editor of our statutes, and 
reports of decided cases and of editions of a number of works of 
the civilians. He also wrote a history of the State. As a mem- 
ber of the Bar, he followed his profession with success, until 
appointed a Federal Judge in the Louisiana Territory and, upon 
its organization as a State, held the positions of Attorney-Gen- 
eral and Chief Justice of Louisiana. The latter office he filled 
until his death in 1846. During the last eight years of his life 
he was totally blind. Mr. Dart, in his interesting address on the 
History of the Supreme Court of Louisiana, says: "Martin, 
considered from any angle, was a profound scholar. His legal 
mind had also been formulated in the common law field, but he 
had the advantage of the language of his birthplace (France), 
and he had studied the masters of the civil law con amove. In- 
deed, it is said that, his edition of Pothier on Obligations was 
translated, from book to type, at his printer's case in North 
Carolina. This early American print is . . . one of the 
rare treasures of the legal bibliophile." 

At the end of two years Gaston received his license to prac- 
•tice law. He qualified at the March Term, 1798, of the Court 
of Craven County. The "Brief" in his "First Case" is care- 
fully prepared, citing the numerous statutes of the State in 
regard to the liability of the sheriff as special bail, when the 
imprisoned debtor had escaped. The dockets of Craven and 
the surrounding counties show that he met with fair success 
as an attorney. 



William Gaston 13 

In 1800, he was elected to the State Senate. Dr. Battle, re- 
ferring to the attempt to take from the University the escheated 
lands, says: "William Gaston, at the age of twenty-two, be- 
ginning his long career of public service, always advocating 
liberal and progressive ideas," was among the Senators "who 
stood by the University." 

Wheeler says: "The labors of his profession, and duties to 
those who entrusted their lives and fortunes to his hands, with 
his small patrimony, denied to him that service to the people 
that they required." In January, 1800, upon the invitation of 
St. John's Lodge of Masons, Gaston delivered an address "on 
the distressing event of the death of their late brother and be- 
loved fellow citizen, George Washington," for which he re- 
ceived "their public and unanimous grateful consideration." 

He did not appear again in the Legislature until 1808, when 
he was a member of the House of Commons, of which body 
he was chosen Speaker. At this session, Gaston drew, and for 
the Committee reported, a bill for the regulation of descents. 
The original draft of the bill, with the report of the Com- 
mittee, is among his papers. This statute remained, with a 
single amendment, our canon of descents until 1868, and so 
continues substantially to this day. He also drew the statute 
making provision for children born subsequent to the execution 
of the will of their father. 

Between 1800 and 1808, he pursued the practice of the law 
with increasing success, attending the courts in the New Bern 
and Wilmington Districts, the Federal and Supreme Courts at 
Raleigh. A letter from Samuel It. Jocelyn, an attorney re- 
siding at Wilmington, gives an amusing account of the fate of a 
law suit in which Gaston was interested, showing that, in those 
days, the delays of the law, of "which the reformers of this day 
so justly complain, were not unknown. He writes : 

With respect to Colonel R's suit, everything has tended to delay — 
the sheriff either did not receive, or lost, the first writ — at July 
Term, violent rains prevented our attendance. In October, the 
clerk set out for the Court, as usual, drunk. He deposited the 
records in a certain box, which was committed to the care of a 
negro mounted upon a mule. In the course of their progress, the 
clerk so managed that his horse ran off and precipitated His Wor- 
ship into a thicket and demolished the chair — the mule, not to be 



14 William Gaston 

outdone in such merry gambols, exhibited divers antic movements 
and ended the performance by prostrating the custos legis, for the 
time being, and scattered the records through various parts of the 
adjoining woods — this marvelous feat prevented business during the 
term. Previous to the January term last, this precious Clerk was 
removed from all sublunary Courts and no venire was issued. At 
January term a new clerk was appointed, but the widow of the de- 
ceased, or the mule, I don't know which, have refused to part with 
the records. However, it seems that the present clerk was appointed 
by a number less than the majority of the justices of the county and 
an unsuccessful candidate intends to dispute the validity of the ap- 
pointment — so that, when I am to get a judgment against Colonel 
R., only Jefferson himself can tell. 

Gaston was, at this time, an ardent Federalist. He believed, 
as probably did those of his party generally, that Mr. Jefferson 
and his followers, were subservient to French influence. He 
thoroughly detested and distrusted Napoleon. 

Gaston was elected a member of the Thirteenth Congress, 
taking his seat May 24, 1813. On the State's delegation, were 
Nathaniel Macon, Peter Forney, William R. King, Bartlett 
Yancey and others. He met Daniel Webster, Henry Clay, 
John C. Calhoun, Langdon Cheeves, William Lowndes, Felix 
Grundy and others, who became more or less famous. He stood 
with his party in opposition to Madison's administration. Be- 
ing criticized by Mr. Grundy for his support of a resolution 
introduced by Mr. Webster, Gaston retorted with much spirit, 
saying : 

Any charge of partiality to the cause of the enemy, as contrasted 
with that of my country, so far as regards me, would be utterly 
untrue. The bare suspicion of it is intolerable. It will not be 
egotism, I trust, to add that, baptized an American in the blood of 
a murdered father; bound to my native land by every moral and 
natural tie that can fasten on the heart of man, with no motive of 
interest, passion or prejudice to seduce the loyalty of my affections, 
never can I separate myself from the cause of my country, however 
that cause may have been betrayed by those in whose care it is 
confided. 

On a resolution providing for the election of Presidential 
electors by districts, Gaston made a very able argument in sup- 
port of the proposition. His speech on the Loan Bill gave 
him much reputation. Mr. Calhoun, replying to this speech, 



William Gaston 15 

referred to a statement made by Gaston, in a manner which 
created a scene, which, but for moderation and courtesy of 
both, may have had unpleasant results. Referring to a war 
with Canada, Gaston said : 

There is something in the character of a war made upon the 
people of a country to force them to abandon a government which 
they cherish and to become the subjects, or associates of their 
invaders, which necessarily involves calamities beyond those inci- 
dent to ordinary wars. Among us, some remain who remember the 
horrors of the invasion of the Revolution and others of us who have 
hung with reverence on the lips of narrative old age, as it related the 
interesting tale. 

He was a member of the Fourteenth Congress, serving on the 
Committee on Ways and Means. Mr. Clay was reelected 
Speaker. The majority, with the aid of the Speaker, had, at 
the previous session, effectively used the Previous Question to 
prevent debate upon, and amendments to, measures which were 
deemed essential to success in carrying out the policy of the 
administration. Mr. Stanford, of North Carolina, moved to 
expunge the rule which related to the Previous Question. Mr. 
Randolph supported the resolution in a short, incisive speech, 
saying that in the English House of Commons "they would as 
soon think of stopping the volleyed lightning of heaven as of 
stopping the Elder Pitt — that there debate was free." This 
called forth from Mr. Clay a spirited defence of the rule, and 
the manner in which it was enforced by the majority of the 
House. At the conclusion of Mr. Clay's speech, Mr. Gaston 
arose and said: 

The subject was of paramount importance and had the most im- 
perious claims on the attention of every individual of this honorable 
body — he had witnessed the growth of this rule from its first in- 
trusion here to its present, all controlling domination. 
He rejoiced at the opposition which the motion of his colleague has 
encountered. If this hideous rule could have been vindicated, it 
should have received that vindication from the gentleman who has 
just resumed his seat. If his ingenuity and zeal combined, could 
form for the Previous Question no other defense than that which 
we have heard, the Previous Question can not be defended. If, 
beneath his shield, it finds so slight a shelter, it must fall a victim 
to the just, though long delayed, vengeance of awakened and in- 



16 William Gaston 

dignant freedom. If Hector cannot save his Troy, the doom of 
Troy is fixed by fate. 

He gave an interesting and exhaustive history of the origin 
and development of the Previous Question, tracing it to the 
Parliament of 1672. Concluding an account of the manner in 
which the rule was enforced for the purpose, as he argued, 
of "stifling discussion" and "cutting off amendments," he said 
that the only argument advanced to excuse "this outrage on 
parliamentary law" was "necessity," "the excuse for every 
folly, the pretext for every crime. Necessity, which the miser- 
able culprit, who steals a loaf of bread to feed a starving family, 
pleads in vain at the bar of your Criminal Courts, but which 
successful tyrants, in every age, have made the apology for 
their usurpations on freedom." Colonel William Winston 
Seaton wrote: "Perhaps the most brilliant of Judge Gaston's 
legislative tournaments was a conflict with Mr. Clay on the 
Previous Question, as a rule of order. Mr. Gaston went into 
the debate after a careful examination of all the points of law 
and history that had been enacted in the mother country, and 
our own, on the subject and caught Mr. Clay wholly unpre- 
pared. Eminent statesman and patriot as he was, Mr. Clay 
was, nevertheless, human and retired from the contest some- 
what soured." Governor Swain says: "Mr. Gaston unhorsed 
Mr. Clay in the debate." Their personal relations were strained 
until some years afterwards, Colonel Seaton brought them to- 
gether at his table, and by a tactful toast, restored kind and 
cordial intercourse. When Mr. Clay spoke in Raleigh, June 
1844, he paid a very handsome tribute to Gaston. Chancellor 
Kent wrote, some years later, that he had found the speech in 
a volume of his pamphlets, saying : "I have read it again this 
morning and, permit me to say, it is a masterly and scientific 
legal and constitutional argument, with the most diligent exam- 
ination, and keen critical analysis of the documentary authori- 
ties. It is an admirable production." He refers to the speech 
in a note to his Commentaries, (Vol. I. p. 238). Mr. John 
Sargeant, of Philadelphia, said that it "was the best discussion 
of the subject that he had ever met with." 

Gaston spoke in favor of the National Bank and voted 
against the Tariff of 1816. His opposition to the administra- 



William Gaston 17 

tion, and the course of the government in connection with the 
War of 1812, was very intense, probably more so than it should 

have been. 

In an address delivered by Mr. Samuel F. Phillips, Solicitor 
General of the United States, at the installation of the Law 
School of the Columbian University in 1884, he said: "Mr. 
Gaston was in Congress for two terms only, seventy years since. 
I do not characterize that part of his career unduly in sug- 
gesting that no man upon that theater, has done more for solid 
and lasting reputation in so short a time. Making much of 
the fame which Mr. Webster was then achieving, Mr. Ticknor 
chose to mark it by saying that 'with Gaston and Hanson he 
stood in the front rank of the then opposition, . . . Mr. 
Gaston, while yet in the full vigor of his powers, turned from 
the political visions, which no doubt attended his earlier life, 
to engrossing professional occupation and that domestic peace, 
which he was so well fitted to enjoy and to enhance." 

It is doubtful whether Mr. Gaston would have achieved large 
success, or found happiness, in Congressional service. He was 
somewhat impetuous in his temperament when young, being, 
as he once said, "the son of an Irishman." His political con- 
victions were intense and not subject to change. The three 
statesmen whom he most admired were Washington, Hamilton 
and Marshall. He regarded Jefferson as a visionary and im- 
practicable philosopher, inclined to French infidelity and under 
the influence of French theorists. Madison and Monroe, he 
regarded as patriotic citizens and statesmen, but dominated by 
Jefferson and his school of thought. He did not admire Mr. 
Calhoun and strongly opposed his "doctrines." His relations 
with Mr. Webster were very cordial. A number of interesting 
letters from Mr. Webster are found among his papers. It was, 
therefore, not unnatural that he found but little attraction in 
the National service after the downfall of the Federalists. Gov- 
ernor Swain says that when he was elected to the judgeship in 
1831, Gaston advised him most earnestly never to permit him- 
self, except under an overpowering sense of public duty, to be 
seduced into a return into political life. He said he was grow- 
ing old, and endeavored, as much as possible, to withdraw at- 
tention from the threatening aspect of public affairs, that he 
2 



18 William Gaston 

had always endeavored to place country above party, and that 
yet, upon a calm review of his whole course of life, too many 
instances presented themselves when he convicted himself of hav- 
ing been influenced, to an extent of which he had no suspicion at 
the moment, by other than purely patriotic considerations. In 
addition to this, it had been his fate, on repeated occasions, to be 
most loudly applauded for what, in his own conscience, he re- 
garded as least praiseworthy, and to be bitterly reviled for 
what he considered to be the purest and most praiseworthy acts 
of his public life. Gaston entered political life at a time when, 
as our history teaches, the most bitter animosities are de- 
veloped — the disintegration of party organization and new ad- 
justment of party lines. To men of strong convictions and 
party loyalty, it is always difficult to form new alignments and 
painful to witness the ease with which many of those with 
whom they have been associated, adjust their political status 
to more popular and promising associations. Such was the 
fate of many of the Federalists of the early years of the last 
century, and of the Whigs of half century later, to say nothing 
of our own day. During the remaining years of his life, Gas- 
ton found his political association with the Whigs. His cor- 
respondence shows that his counsel was frequently sought by 
the State and National leaders of that party. In the State 
he favored, and took a very deep interest in internal improve- 
ments, public education and other measures of the Whig party, 
which would now be termed "progressive." 

At the session of 1818, he was a member of the State Senate 
and chairman of the Judiciary Committee. The Legislature, 
at this session, contained an unusually large number of able 
men, among whom were James Iredell the younger, Willie P. 
Mangum, Romulus M. Saunders, Archibald D. Murphey. 
Governor Branch, in his message, strongly recommended that 
the judicial system of the State be placed upon a stronger, more 
efficient, and more permanent basis. The necessity for such 
legislation is explained in the very interesting and enlightening 
address of Dr. Kemp P. Battle (103 1ST. C. Rep., Appendix), on 
the "History of the Supreme Court." As chairman of the 
committee, Gaston prepared a bill, sustained by a very able 
report, which should be carefully read by students of our judi- 



William Gaston 19 

cial history. The legislation proposed and adopted, secured the 
establishment of the Supreme Court, composed of three justices, 
one of whom, elected by the others, served as Chief Justice, 
with its jurisdiction as it remained until the adoption of the 
Constitution of 1868. The Court was, and continued to be, 
the object of attack, both in respect to its existence and its 
independence. At every session of the Assembly, for many 
years, bills were introduced either to abolish the Court, or re- 
duce the salaries of the judges. 

x\t the session of 1828-'29 the great debate on the banks took 
place, in which Gaston took a leading part. Under the lead- 
ership of Eobert Potter, of Granville, a strenuous effort was 
made to destroy the State banks, charging them with viola- 
tion of their charters. The report of the majority of the 
Committee composed of Graham, Mendenhall, Swain and others 
recommended that, upon a fixed day, the banks be required to 
resume specie payments. A minority, led by Potter, recom- 
mended that the Attorney-General be directed to institute writs 
of quo warranto for their dissolution and the confiscation of 
their property. The debate was conducted with great spirit 
and, at times, with much bitterness on both sides with Swain, 
Spruill, ISTash and Gaston leading the majority, and Potter the 
minority. Swain made an able and interesting speech, giving 
a history of the legislation in regard to currency and banking 
in the State since 1783. Gaston said : 

I have lived long enough to distrust the projectors, and to regard 
bold experiments with some degree of apprehension. Violent changes 
are never made without producing consequences unforeseen and un- 
expected. True wisdom endeavors humbly to emulate the wisdom ^ 
"^ hung them upon high pillars, so as to render it difficult for the 
. most beneficial results by means scarcely perceptible, acting steadily, 
gradually, constantly. Nor should true courage ever be confounded 
with the fool-hardiness which rushes to the accomplishment of its 
object, blind to the dangers and reckless of the consequences of its 
deed. 

To the proposition to enact an ex post facto law, he said: 

The detestable Caligula wrote his laws in small characters, and 
s- which is displayed in the operations of nature which produces the">^- 
people to discover the penalties to which they were made liable, 
and for this atrocious tyranny, his name has been handed down with 



20 William Gaston 

execration to an indignant posterity. But even he did prescribe 
the penalty before the deed. It was possible to know the law, and 
the consequences of its violation, and although the citizen might be 
ensnared, he was not kept in necessary ignorance. But a law fixing 
the penal consequences of an act — after the act is done, is an 
absurdity in terms. The very nature of society forbids it — the 
eternal principles of justice stamp it with reprobation and the 
Genius of Freedom mocks at its impotent and insolent claims to 
respect. 

The minority report was rejected by the vote of the Speaker, 
Thomas Settle, making a tie. 

The State House was destroyed by fire June 21, 1831. At the 
next succeeding session of the Assembly, the proposition to 
vote an appropriation for building a new Capitol at Raleigh, 
aroused intense interest and brought into the discussion many 
questions which had, for years, divided the people. The con- 
troversy between Fayetteville and Raleigh, in regard to the 
location of the Capitol, which began in the Convention of 1789, 
was revived by a proposition to remove the Capitol to Fayette- 
ville. The controversy between the East and the West regard- 
ing the basis of legislative representation, and internal im- 
provements, had become very intense. Gaston sat for New 
Bern. David F. Caldwell was President of the Senate, Charles 
F. Fisher, of Salisbury, Speaker of the House. The debate 
was opened by Judge Seawell in the Senate, who introduced 
a bill to appropriate $30,000 "for rebuilding the Capitol in 
the city of Raleigh." Judge Toomer, representing Fayette- 
ville, opposed it. In the House, William H. Haywood, Jr., of 
Wake, W. F. Leake of Richmond, John Bragg of Warren, Hugh 
McQueen of Chatham, Louis D. Henry of Cumberland, and 
Gaston of New Bern, took part in the debate, the last named 
speaking twice for the appropriation. 

Colonel R. B. Creecy says that in his later boyhood he was 
in Raleigh, 1831, when the Legislature was in session, and all 
Raleigh was agog about the removal of the Capitol to Fayette- 
ville, and the appropriation for rebuilding the Capitol was 
under discussion. "I heard the speech of Mr. Gaston upon the 
question and it was a masterpiece of intellectual force and 
eloquence. . . . He spoke twice on the subject and his 
last speech was the ablest ever made in a deliberative as- 



William Gaston 21 

sembly in North Carolina. His first speech was a feeler, a 
fine piece of legislative strategy. Unfortunately, the last speech 
was not published in the debate, as was the first, but it was 
the grand terminal of the debate." Allowing for his ardent ad- 
miration of Gaston, a perusal of the first speech shows that, 
in respect to it, Colonel Creecy was not extravagant in its praise. 
This session closed Gaston's legislative service. 

"Wheeler says of his style as a parliamentary speaker: 

It was my fortune to sit through two sessions of the Legislature 
in the seat next to Judge Gaston, and also on the Committee of 
the Judiciary with him. He had, or seemed to have, when he first 
arose to speak, a modesty that was embrassing to himself as it 
was to his audience. He trembled perceptibly at first, but after 
a few moments, his emphatic and deliberate manner and subdued 
tones commanded profound silence and attention. He Pecame per- 
fectly possessed and commenced his argument with matchless and 
thrilling eloquence. As he progressed, the grandeur of his ex- 
pression seemed to increase while his illustrations were as lumi- 
nous as a sunbeam, and his arguments carried conviction to the 
minds of his entranced auditors. There was no sophistry to mis- 
lead, no meretricious ornament to beguile, his person seemed al- 
most inspired, and his countenance expressed a benignity of soul 
which marked his whole life and character. 

During these years, Gaston enjoyed a large practice in the 
eastern counties, the Federal Court and in the Supreme Court 
of the State. Governor Swain says that when he first saw the 
Supreme Court in session in 1822, "Chief Justice Taylor, the 
Mansfield of North Carolina jurisprudence, Judge Hall, pro- 
verbial for integrity, amiability and sound common sense, and 
Judge Henderson, who in genius, judgment and power of 
fascination in social intercourse was without his peer, were 
the three Judges. William Drew, standing on the partition 
which divides great wit from frenzy, was the Attorney-General. 
Francis L. Hawks, who had not yet attained the twenty-fifth 
year of his age, but had already given favorable promise of 
future eminence, was the Reporter. Of the members of the 
Bar, Gaston, from the East, was facile princeps. Mr. Badger 
was, at that time, making reputation as the youngest judge on 
the bench. Archibald Henderson and Joseph Wilson, from 
the West, Archibald D. Murphey and Thomas Ruffin, from the 



22 William Gaston 

Hillsborough section, and Judge Seawell, Gavin Hogg and 
Moses Mordecai, from Raleigh, constituted an exceptionally 
strong Bar." 

Time does not permit an extended notice of many of the 
important and interesting cases argued by Gaston. In ex parte 
Thompson (10 N. C, 355), the right of unnaturalized persons 
to receive a license to practice in our courts was argued by 
Gaston and Ruffin for, and Seawell against, the applicants. In 
State v. Antonio, Gaston argued in favor of the right of an 
alien, upon trial in our Courts, to demand a jury de meditate 
linguae based upon the English statute of 28th Edward III. 
In Trustees v. Dickerson (12 ~N. C, 189), contrary to Gaston's 
argument, it was beld that a bequest of slaves to the Trustees 
of the Society of Friends was void, because of the manifest 
purpose of procuring their emancipation. During these years 
Gaston enjoyed a large share of the Supreme Court practice. 

The North Carolina Reports, 1818 to 1835, are enriched with 
full notes of the arguments of counsel. Ruffin, Mordecai, Hogg, 
Cameron, Badger, Seawell, Devereux, Gaston and others fur- 
nished the Court with arsenals of arguments, from which to 
draw in deciding causes and writing opinions. This was be- 
fore the days of encyclopedias, and other boundless and bottom- 
less resevoirs "of cases in point." Probably then only arguable 
cases found their way to the Court. 

Dr. Battle says: "The members of the Supreme Court Bar 
prepared, with careful study, their arguments, cogent in logic, 
mighty in language and fortified by precedent." A strong 
Supreme Court Bar is a most efficient agency in the making 
of a strong Court. It may not be entirely irrelevant to com- 
mend to the younger brethren a careful study of the Reports of 
Hawks, Devereux, and Devereux & Battle, rather than the spend- 
ing of their entire time in "hunting for a case," in volumes of a 
thousand pages which, when supposed to be found, is based upon 
a local statute. An illustration of Gaston's style of presenting a 
cause is found in Taylor v. Parsley, 19 JSL C. Rep., 125. In 
support of the claim of a widow of a deceased debtor to dower 
in lands conveyed in trust, he said : 

It is supported by reason, humanity, justice and policy. By 
reason, for the widow's claim was originally excluded against 



William Gaston 23 

reason; by humanity, which would save the helpless widow and 
children from being turned houseless on the world, banished from 
the home where they had known a father's society and affection; 
by justice, for the widow has bought her claim and paid for it 
the highest price known to the law; and by policy for, in the 
wreck of misery, a plank should be afforded to the surviving suf- 
ferers. These deeds of trust are tremendous engines, against whose 
explosions, some sheltered nook should be secured for the helpless. 

During these years, in addition to the labors imposed by 
his extensive practice, he was President of the Bank of New 
Bern, Chairman of the Trustees of the New Bern Academy, and 
frequently a member of the General Assembly. By the death 
of his last wife, the education of a son and four daughters was 
committed to his care. In none of the relations of his life are 
the finest and highest qualities of Mr. Gaston more strongly 
illustrated than in his correspondence with his daughters. His 
letters were written frequently, after the day's labor in court, 
consultation and preparation of causes, arguments in the Su- 
preme Court, or service in the Legislature. They are models 
of wise counsel, exhortations to piety, industry and the culti- 
vation of the graces of womanhood. 

The honorary degree of Doctor of Laws was conferred upon 
him by the University of Pennsylvania (1819), and Columbia 
College (1825). On September 29, 1S26, Gaston wrote Mr. 
William Sullivan of Boston, that he "had learned, from the 
public prints," that the degree of Doctor of Law had been con- 
ferred upon him by Harvard University, and he asks Mr. Sulli- 
van to tell him "what is usual, what is expected of him who 
is honored on such occasions." This inquiry brought an inter- 
esting letter from Judge Story to Mr. Sullivan, which was 
transmitted to Mr. Gaston, in which he says: 

You are right in the suggestion that I took an "active part" in 
procuring this degree, for I admit that the suggestion originally 
came from me, but in justice I ought to add tbat, as soon as 
Mr. Gaston's name was mentioned, there was an instantaneous 
assent on the part of the whole corporation. . . . My 
reason for naming Mr. Gaston was because he is one of the most 
distinguished of American lawyers, in the highest sense of the 
phrase; because he is eminent as a statesman; and because as a 
private gentleman he is all that one can wish or desire. 
I consider our appointment as conferring honor on ourselves and 



24 William Gaston 

not on Mr. Gaston. I am proud that he should stand on our cata- 
logue truly a Doctor of Laws, whom to know is to respect. 

At the Commencement of the University of North Carolina, 
1832, Gaston delivered the literary address before the graduat- 
ing class. Colonel Creecy, then a student, says: "The ap- 
pointment of Gaston drew a large concourse of visitors from all 
parts of the State; the largest that ever attended a Commence- 
ment before. Gaston came a day or two before the delivery 
of the address. He became at once the cynosure of all eyes. 
His manner was grave, courteous and unostentatious. He was 
affable, with dignity and companionable without familiarity. 
. . . The June day w T as auspicious. . . . With some 
difficulty we procured a scholar's black silk gown, large enough 
for Gaston to wear. The procession was formed at the Old 
South Building. On one side of Gaston was Tom Ashe, with 
the trained step of an English grenadier, with the proud and 
grand visage that bespoke his lineage. On the other side was 
Clingman, awkward, gawky, as a plowman's prentice boy, but 
with a brain that Webster or Cuvier might have envied. 
. . . [The address] was a grand effort . . . and should 
be in the hands of every schoolboy and of every man of generous 
aspirations in the State." Dr. Battle (History of the Univer- 
sity, Vol. I, 344) says : "The address met with public favor to a 
most extraordinary degree. It ran through four editions, the 
first of 5,000." It was also published by La Grange College, 
Alabama, and by Mr. Thomas Whyte of Richmond. In 1858, 
a fifth edition was published by the two Literary Societies of the 
University of JSTorth Carolina. The fourth edition contains a 
letter of high commendation by Judge Marshall. In a letter to 
Gaston, Judge Marshall says: "If anything could surpass the 
sound and correct advice given to the student for the direction of 
his early youth, it would be that intended for his government 
when entering on the great theater of human action." I have 
seen but few copies of this admirable address. It is doubtful 
whether, except in the keeping of the few who preserve this 
character of literature, it is to be found. Referring to "the 
worst evil that effects the southern part of our confederacy," he 
said: 



William Gaston 25 

Full well do you know to what I refer for, on this subject, there 
is with all of us, a morbid sensitiveness which gives warning even 
to an approach to it. Disguise the truth as we may, and throw 
the blame where he will, it is slavery which more than any other 
cause, keeps us back in the career of improvement. It stiflos 
industry and represses enterprise, it is fatal to economy and provi- 
dence, it discourages skill, it imperils our strength as a community 
and poisons morals at the fountain head. How this evil is to be 
encountered, how subdued, is indeed a difficult and delicate inquiry, 
which this is not the time to examine, nor the occasion to discuss. 
I felt, however, that I would not discharge my duty, without re- 
ferring to this subject as one which ought to engage the prudence, 
moderation and firmness of those who, sooner or later, must act 
decisively upon it. 

Dr. Battle says: "It is remarkable that when the public 
mind was inflamed peculiarly on account of the bloody insur- 
rection of Nat Turner in the preceding year, the orator should 
have frankly acknowledged himself an advocate of the ulti- 
mate abolition of slavery and that the audience cheered the 
utterance. . . . This bold language did not weaken his 
standing in the State." 

Mr. Phillips gives his "earliest personal recollections" of 
Gaston, on this occasion. He says : 

The crowd was too great to admit such as I then was, by open 
methods at the regular entrance, but, being well assisted, I climbed 
in at a window and, with the usual luck of an enterprising child, 
soon found myself in a commanding position, within a quarter other- 
wise exclusively devoted, by the gallant marshals of the day, to 
ladies, whence I surveyed the scene with the eager eyes of long ago. 
Mr. Gaston was speaking, I had no conception what about, but after a 
short while I did notice, with interest, that while the audience 
was applauding at the close, the speaker dramatically waved 
his hand and called upon the band in attendance for "Hail Colum- 
bia." . . . He had thought proper, it seems, to occupy the 
last part of his hour in a spirited attack upon the doctrine of 
nullification then fomenting beyond our State's southern border. 

In the graduating class of that year were Thomas S. Ashe, 
Thomas L. Clingman, and James C. Dobbin, all of whom ren- 
dered service and achieved high distinction in the State and 
Nation. 

Chief Justice Taylor died January 29, 1829. The 16th vol- 
ume of North Carolina Reports contains a "Memorial" of him of 



26 William Gaston 

singular beauty. He was succeeded by Judge Leonard Hender- 
son, who had been an Associate Justice since the organization of 
the court in 1818. Judge Thomas Ruffin was elected one of 
the Associate Justices (1829) upon the death of Judge Taylor 
and, upon the resignation of Judge Hall (1832), who had also 
been Associate Justice since 1818, Judge Daniel was elected. 
Chief Justice Henderson died August 13, 1833. At the session 
of the General Assembly of 1832, as at almost every preced- 
ing session, a bill had been introduced to repeal the Act of 1818 
and restore the Court of Conference as it had existed prior to 
1787, and to reduce the salaries of all the judges. On August 
15, 1833, Mr. Thomas P. Devereux wrote Mr. Gaston inform- 
ing him of the death of Judge Henderson, saying : "Nothing, I 
fear, can save the Supreme Court, unless you will consent 
tc take a seat upon it. . . . All know that you are capa- 
ble, and many know that you have a moral sense which impels 
you to the discharge of every duty." 

On May 19, Mr. Gaston, answering the letter, said that until 
lately he had supposed himself exempt from the necessity of 
deciding whether he should not accept an office under the State. 
He had doubted whether the Constitution did not disqualify Ko- 
man Catholics from holding an office, and with such doubt he 
should have deemed it sinful to accept an office if tendered, but a 
year or two since the office of Justice of the Peace was con- 
ferred upon his son and, before he decided to qualify, he felt it 
a duty to examine whether the Constitution contained such 
disqualification. 1 "I then came to the conclusion, aided by one 
of the best legal understandings in the State, that whatever rea- 
son there might be to conjecture, that some of the framers of 
the Constitution intended to prohibit Koman Catholics from 
holding office, judicially, it must be expounded as not declaring 
such disability." The reference to "the opinion of one of the 
best legal understandings in the State," is explained by a letter 
to Gaston from Judge Ruffin, May 23, 1832, in which, at great 
length, and with much care, he examined the questions from 
every angle and concludes: "I have much confidence in the 

•Art. XXXII of the Constitution of 1776, to which Gaston refers, is as fol'ows: 
"That no rvrson who shall deny the Being of God, or the Truth of the ProtestnntRe- 
Iigion, or the divine authority either ot the Old or New Testament, or shall hold religious 
principles incompatible with the freedom and safety of the State, shall he capab e of 
holding any office, or place of trust or profit, in the Civil Department within this State. 



William Gaston 27 

conclusion I have long ago arrived at, that a Roman Catholic 
may lawfully, before God and man, undertake to serve North 
Carolina to the best of his ability in any civil office according to 
his natural allegiance and his personal duty. ... I am 
very decidedly persuaded, and have long been, that Roman 
Catholics cannot, without giving to the terms of the Constitu- 
tion a latitude and force altogether unauthorized, be excluded 
from civil office." After naming other considerations, entering 
into the question of accepting the office, Gaston writes to Mr. 
Devereux : "I shall then leave it to a few friends — in whose in- 
tegrity, knowledge of what Avould be expected from me, and in 
whose frankness I can confide, to say what duty demands of me 
and this friendly tribunal I wish to consist of Governor Swain, 
Mr. Badger and yourself." In his letter to Mr. Devereux, Gas- 
ton mentions, as one of the "very serious" reasons causing him to 
hesitate about accepting office, that he is in debt and sees no 
prospect of speedily relieving himself if he abandons the Bar. 
He says: "When I look back upon my culpable inattention to 
pecuniary matters, I find it difficult to account for my folly. 
. . . My resolution was formed to pay off my debt by my 
labor, and, to a great extent, this has been done. But it has 
not been fully done. I yet owe about $S,000 and with my 
present income I may well hope to accomplish this in two years 
more. Were I to accept a seat on the Bench, I should abridge 
that income $3,500 or more [the salary was $2,500] there would 
then be no chance of my paying the debt within that time, or as 
rapidly as the rules of the banks require." He says that he 
would not accept the position unless his debt could be placed 
in other hands than the banks upon such time as he could, out 
of his salary, discharge it. He concludes his letter: 

The office has no charms for me unless there be a strong proba- 
bility that I can discharge its duties in such way as may satisfy the 
expectation of the country. Demagogues are every year attacking 
the office and finding fault with the salary attached to it. I could 
not but be restive under such attacks were I an incumbent, and I 
ought not to place myself under so unpleasant condition without a 
well founded conviction that duty required it of me. In the sin- 
cerity of my heart I say to you that I do distrust, and greatly dis- 
trust, my ability to perform what will be, and what ought to be 
expected of me. 



28 William Gaston 

On September 3, 1833, Governor Swain, Mr. Badger and 
Mr. Pevereux joined in a letter to Gaston, saying that they had 
arrived at a perfect conformity of opinion, without having 
been under the necessity, so commonly felt in consultation be- 
tween members of another learned profession, of making any 
compromise, or at least sacrificing his interests to apparent uni- 
formity of advice. They wrote : "The welfare of your family is 
to be preferred to any interest which the public may have in the 
preservation of the Court and if your family is to be the loser, 
ultimately by your acceptance we hesitate not to say that you 
ought to refuse. That your profits must be greatly reduced 
by accepting the office Ave all know, but it is a candor which 
your friendly confidence in us demands from us to say that we 
think, that by no means decisive of ultimate disadvantage." 
They suggest that he is advancing in age and that the demands of 
his professional labors will soon undermine his strength. After 
discussing the public interests, they conclude : "In a word, we 
think your appointment to the Bench the only event which will 
preserve the Court." 

On August 31, 1833, Judge Ruffin, writes him describing, in 
intensely strong terms, the difficulties by which he is sur- 
rounded and his determination, unless they were removed, to 
retire from the Bench. The constant attacks upon the Court 
by members of the Legislature, he denounces in vigorous terms, 
saying: "I can submit to any law; but I cannot degrade my- 
self into a submission to the unauthorized caprice of the syco- 
phants (not the representatives) of the people. Such a tyranny 
ought to be resisted and, in this case, can be resisted only by 
refusing to eat the bread of dependence." 

After describing the qualities which should be found in the 
judge to be appointed, Judge Euffin says : 

He must be a sound lawyer and a sound man. Where is such a 
person to be found? How is such a one to be obtained? This 
communication proves my opinion, who is one such, if not the indi- 
vidual? "Thou art the man." . . . How are you to be had? 
Will the assurance of the almost unanimous wish and expectation 
of the Bar avail nothing? Have not the arduous labors of many 
years in chambers and in the courthouse, the silvery hue of 
thinned locks, the dignity of retirement from contests with your 
great grandsons in the law; the calmness of dispassionate deliber- 



William Gaston 29 

ation and unbiased decision upon the great questions which in- 
volve the liberties and rights of our fellow-men, and the pleasure 
— superhuman almost, of redressing, in the name and by the 
authority of the law, the wrong done to those who can not redress 
themselves, never insinuated into your mind that it was now 
desirable, now proper, to change the theatre of your exertions, be- 
cause you could be, upon the Bench, more useful, more happy, than 
at the Bar? Do you mean to devote no portion of the evening of 
your days to repose, to conversation with your children, to the 
more perfect service of another Being, whose state is too exalted, 
and whose name is too awful to be uttered in connection with a 
worldly occasion, even so grave as this? Do you, who have, with 
the self denial of a patriot, served your country in almost every 
other capacity, deny her claim to bring your mature abilities, and 
your diversified knowledge to her service in the adjudication of the 
controversies of her people and the settling of doubtful points 
in her jurisprudence? Is not that claim irresistible when you, 
and you alone, can sustain, and probably render permanent, her 
tribunal of justice in the last resort, of which the destruction would 
be her greatest calamity? ... I hope your prudence and the 
undoubtedly large income earned by the diligence of many of the 
years last past, have saved you from the pecuniary obligations in- 
curred heretofore for unfortunate friends. 

Referring to the Avork of the Bench, the Chief Justice says: 

The fact is, that the pursuit of truth instead of victory, does 
both embellish and invigorate the mind; and the very desire for 
truth makes it attainable. But for a hesitation upon the propriety 
of writing, this letter would have been more perspicacious and less 
fatiguing to you. But after declining it repeatedly in my mind, my 
hopes and fears overcame my doubts and, after midnight, I have 
written this letter, such as it is. . . . I have written from 
motives entirely pure towards my fellow citizens, and with those 
emotions of warm attachment, and perfect esteem which, for many 
years, have been felt and cherished toward you personally. * * * 
I said to Devereux that I had rather serve with you than any man 
on earth. 

This letter brought from Gaston a full and frank expression 
of his feelings. After repeating what he had written Mr. 
Devereux, in regard to the Constitutional provision, respecting 
holding office by Roman Catholics, he discloses his financial 
troubles, saying that he was told that moneyed individuals 
would be glad to lend 



30 William Gaston 

on these terms [payable in annual installments] but I have no turn 
for negotiations of this sort. I could not bear to make them after 
accepting office. . . . There is no civil office which man 
can hold of which I think more respectfully than that of a Judge. 
If office could have any claims for me it would be the one in 
question. But I must say that even that office involves a departure 
from the state of independence, in which I prefer to live. I am now 
accountable to no human being further than the laws of my God 
and my country make every one accountable. In office my con- 
duct, my demeanor, my opinions, become, it is thought, a fit subject 
for everybody's criticism. ... I admit, unequivocably, 
that I have no right to consult this preference [for private life] if it 
be at variance with my duty to my country. The hey-day of life is 
over, and I am approaching to its close. . . . It is His will 
that I shall do all the good that I can to my fellow-man. Were I 
assured that, in taking this office, I should be as useful as you, 
and some others of my friends think, I would esteem myself bound 
to say (my engagements to my creditors being first provided for) 
they may declare me ready to enter upon it if the legislature choose 
to confer it. And now, my friend, I have laid before 

you all. In the sincerity of my soul I say that if I did but know 
what I ought to do, I should not hesitate one instant in doing it. 
I can have no peace for the residue of my days if I act against that 
duty. . . . Suffer me to ask you to counsel me frankly and 
disinterestedly. I assure you, on my honor, that you need not fear 
to give me offense. . . . If it had pleased God, would that 
this emergency had not occurred. Would that the life could have 
been prolonged of that great and good man whom we have lost. 
What a perspicacious and commanding intellect. What an un- 
shaken firmness of purpose. What an exalted love of justice. What 
a warm, generous and kind heart was his. 

Judge Euffin replied August 31, 1833, saying that his obliga- 
tion to Gaston was 

heightened by the very ingenuous, explicit and confiding answer 
which I have received from you, which can only serve to increase 
the affection which I have long cherished and confirm the respect 
which I have always entertained for you. I have read it more than 
once that I might perfectly appreciate the difficulties which have 
presented themselves to you before giving my reply which, to be 
useful, must be immediate and which, I doubt not, you will expect 
by the first post. I must, in the first place, express my sincere and 
hearty satisfaction at observing that there is no obstacle, as it 
seems to me, that ought to be deemed serious, certainly not insuper- 
able, to your accepting office. At least were your case mine, I 
should thus think and act. . . . Everybody expects you to 



William Gaston 31 

do your duty. The obstruction supposed by some to be interposed 
by the constitutional provision, I am very happy to find you have 
properly overcome. My opinion upon the construction of that 
clause has before been communicated to you. It remains unaltered 
and stands confirmed by subsequent reading and continued reflection, 
as you must necessarily have concluded from the general import of 
my letter, since I could not, in good faith ask you to do, what I 
thought you could not, in good conscience, do. 

After a discussion of the Thirty-second Article, Judge Ruffm 
says: 

I am, therefore, clear in the conclusion that the very circum- 
stances which some might profess to believe, forbids, rather makes 
it a duty, in you, to accept office. It is known to all that you 
do not desire public employment; that you make a sacrifice of 
private emolument and personal comfort in leaving private life; 
and that your sole motive is to fulfill the duties of a faithful 
citizen and a responsible being. ... I have often thought 
that with your opinion upon this question, you ought to seek 
rather than avoid, an opportunity, by action, thus giving the 
most direct and impressive public memorial to all times and per- 
sons to come, of those opinions, and thus save one portion of your 
fellow citizens from the bitter pangs of persecution, and another 
portion, from those, still more bitter, of persecuting and pro- 
scribing. 

Referring to Gaston's pecuniary obligations, he said: With 
my sentiments expressed frequently in private discourse of the 
obligation upon all men to pay debts, and to pay them accord- 
ing to the wishes and rights of the creditor, you are too well 
acquainted to make it necessary that I should say that I honor 
you for every feeling of your bosom and every word you utter 
on that point. But I have not the least hesitation in believ- 
ing that every arrangement you can desire in that respect is 
attainable. I have not the money myself (what Judge has), 
or it should be at your service." After naming a gentleman 
who would be glad to make the loan, with security, Judge 
Ruffin says: "Allow T me, without preface, or profession, to 
tender such as my name will be deemed, should you have 
occasion for the use of it." Referring to this question, Mr. 
Devereux wrote: "Upon the first head of objection [the 
money] that ought not to weigh a feather or, for a moment, you 
can have the money almost by return mail, upon expressing 



32 William Gaston 

your willingness to take it, and the favor is done by you, not by 
the lender." Could a man's friends be more generous, or pay 
a higher tribute? 

On September 9, 1833, Gaston writes from Tarboro, N". C, 
"Having taken all of the measures which I thought necessary 
to enlighten my judgment, it is my duty to avow to my friends 
the decision to which I have arrived. You will, therefore, 
please to understand, and have the goodness to communicate 
to those who have had the kindness to act with you, that I hold 
myself ready to accept the vacant seat on the Bench of the 
Supreme Court, should the General Assembly think proper to 
call me to it." Mr. Devereux writes, September 12, saying: 
"You have done all that is incumbent on you to do. Your 
friends will do the rest." He writes Gaston, November 14, 
1833, that Mr. Badger and he had asked the opinion of Chief 
Justice Marshall, when in Raleigh, upon the construction of 
the Thirty-second Section of the Constitution. The Chief 
Justice said that he did not see the least impropriety in giving 
a written opinion but, from the fact that he was a resident of 
the State of Virginia, it might be deemed officious in him to do 
so. He gave them his "views" at full length, having no hesi- 
tation in saying that the Thirty-second Article did not prevent 
Gaston's accepting the position. "That he would not hesitate 
a moment in doing so." Mr. Gaston's views, written out by 
him, were sent to Governor W. A. Graham, who was a member 
of the Assembly and actively supported him. Gaston was 
elected by a very large majority of the General Assembly, at 
the Session of November, 1833. Judge Ruffin wrote him, De- 
cember 2, 1833, 

A message is just now delivered from a friend in Hillsborough 
that you are elected by a large majority which gives us all here 
[Alamance] most sincere satisfaction. I cannot restrain myself 
from saying that I cordially unite in the congratulations your 
friends will tender to you in the triumph which the lovers of virtue 
and the admirers of ability, great attainments and elevated charac- 
ter, throughout the nation, will feel in the consolatory confidence in 
the stability of our institutions and the faithful administration of 
justice. . . . All good men rejoice in the event and all 
Christians will see in it, and acknowledge the overruling power 
of the Majesty on high. But above every other citizen, and all 



William Gaston 33 

other men, I have especial cause for congratulation to you and self 
congratulation. . . . With unfeigned sincerity I salute 
you, with all the respect of an official brother and all the warmth 
of regard of an affectionate friend. 

I deem it well to dwell upon, and set out appropriate por- 
tions of the correspondence between Mr. Gaston and the gen- 
tlemen named, in connection with his appointment, not because 
I think any apology necessary for the course pursued by him, 
but because, for the first time, and long after the departure of 
all of the eminent citizens who took part in securing his service 
to the State the exact facts are made public. It is thus mani- 
fested that, a charge, made afterwards, that Gaston sought 
counsel, even to the extent of a dispensation from ecclesiastical 
authority before accepting the office, is utterly without founda- 
tion. Replying to a letter from Mr. C. C. Baldwin of Lexing- 
ton, Va., editor of the Gazette, referring to an article to which 
his attention was called, he said : 

I infer that it contains a vile charge of my having obtained some 
ecclesiastical dispensation or permission to hold an office under 
the State of North Carolina, and relieving me from the guilt of 
perjury in violating my oath to support the Constitution of the 
State. I know that a charge to this effect has been made in a 
periodical published at Baltimore, called, I think, the Religious and 
Literary Magazine, for, not long after the adjournment of the Con- 
vention [1835], and while I was yet occupied with the duties of 
the Supreme Court, a copy of the magazine containing such an 
accusation was sent to me, I suppose by the conductors of the work. 
It is not easy to determine when it is proper to come forth with a 
denial of a calumnious charge and when it is most becoming to 
treat it with silent contempt. The accusation in question seemed 
to me so preposterous, so ridiculous, that it was scarcely possible 
for me to notice it gravely, without subjecting myself to ridicule or 
manifestation of a morbid sensibility. But I was saved from all 
difficulty in deciding on the course then to be pursued. The style 
of the article was so uncourteous and the temper which it breathed 
so malignant, that self respect utterly forbade me from paying 
any notice to it. 

After giving to Mr. Baldwin an account of the course pursued 
by him, he said : 

It is needless surely for me to go further, but I will add that I 
never had any intercourse, verbal or written, direct or indirect, with 
3 






34 William Gaston 

the Bishop of Baltimore on the subject, and that I did not, directly 
or indirectly, confer with any individual belonging, or professing to 
belong, to the Catholic Church (out of my immediate household) 
until after I had announced my unconditional assent to be put in 
nomination for the office. . . . It is not a pleasant matter 
for any man of character to have a discussion entertained on the 
question whether he has, or has not, acted as a scoundrel and a 
fool, and I regard the wantonness, with which men's characters are 
dragged before the public, the facility with which slanders are 
credited, the rashness with which unfounded imputations are attrib- 
uted by political or sectarian rancor, as among the worst vices 
of the age. 

The foregoing more nearly approaches an outburst of anger 
than any other language found in Judge Gaston's letters, or 
other writings. But one more word on the subject. When Gov- 
ernor Graham was a candidate for Vice-President (1852) it was 
charged that he was unfriendly to Catholics. He wrote the 
editor of a paper published in New York: 



As a friend of the illustrious Gaston, a Catholic, and one of the 
first men of the present age, after learning that he did not think 
himself excluded by the test in the old Constitution, I, with other 
members of the Legislature of 1833, prevailed on him to accept the 
office of Judge of the Supreme Court of the State, to which at that 
session we elected him. Judge Gaston's acceptance of this office 
being criticised on account of his religious belief, he vindicated 
himself in a latter addressed to me, which I read on the floor of 
the House, in a speech in his defense at the next session, and now 
have in his handwriting. 

At the time Judge Gaston was elected to fill the vacancy, 
caused by the death of Judge Henderson, the Court elected, 
from its members, its Chief Justice. Chancellor Kent wrote 
to Gaston that he did not understand why he was not Chief 
Justice, to which he replied that Judge Daniel, having refused 
to have his name considered for the position, Judge Ruffin and 
himself cast lots, and, much to his satisfaction, it went to Ruffin. 
The Chancellor wrote that while it might be true that the po- 
sition went in the right direction, it was a strange way to elect 
a chief justice. Of the Court composed of Ruffin, Daniel and 
Gaston, Dr. Battle, says: "No State of the Union, perhaps, 
not even the United States, ever had a superior Bench — few 
ever had its equal. At home and abroad their decisions, as a 



J 



William Gaston 35 

rule, had the weight of established and unquestioned law. 
. . . All three judges had great natural intellects, all had 
industry, all had unimpeachable rectitude of purpose, all of 
them had the unlimited confidence of the Bar and laity, all 
of them were of a conservative temperament, all of them were 
filled with the desire to decide correctly the cases brought be- 
fore them and to give a right reason for their decision. Their 
personal relations were harmonious." With this just esti- 
mate from this source, nothing further remains to be said 
of the Court. 

A convention called to consider amendments to the State 
Constitution, as the result of a long, and at times, intensely ex- 
citing struggle between the eastern and western sections, met 
in Raleigh, June 4, 1835. Among the delegates were many 
of the ablest and most experienced citizens of the State and 
several younger men who, later in life, achieved distinction. 
Nathaniel Macon, who after a long and distinguished career in 
both Houses of the National Congress, had retired from public 
service, was unanimously elected President. Judge Gaston sat 
for ISTew Bern. It is not possible to refer to the many inter- 
esting questions debated, frequently at length and with ability, 
in this convention. Upon the proposition to take from free 
persons of color the right to vote, which they had theretofore ex- 
ercised in the State, Gaston opposing it, said that the inquiry 
was not whether the right should be then granted, but whether 
it should be taken away. 

A person of that class who possessed a freehold, was an honest 
man, and perhaps a Christian, he did think should not be politi- 
cally excommunicated, and have an additional mark of degradation 
fixed upon him solely on account of his color. Let them know they 
are a part of the body politic, and they will feel an attachment to 
the form of government, and have a fixed interest in the prosperity 
of the community, and will exercise an important influence over the 
slaves. 

While he was with a minority of 61 to 65, many of the most 
enlightened and broadminded delegates concurred with him, 
among them Biggs, Carson, Daniel, Dockery, Ferrebee, More- 
head, Rayner, Shipp, Seawell, Swain, Toomer. Upon the basis 
of representation, the question which excited the greatest in- 



36 William Gaston 

terest, Gaston stood with the central and western delegates, 
fixing the number of members and senators as they have re- 
mained to the present time. He opposed the abolition of 
borough representation. 

It was upon the amendment to the Thirty-second Section 
of the Constitution that Judge Gaston made the last, and prob- 
ably, the most carefully considered and prepared, of his parlia- 
mentary speeches. This article, although as we have seen, 
obscure in its terms, was construed, by some, to exclude mem- 
bers of the Roman Catholic Church from holding offices of 
"honor, trust, or profit" in the State. It was proposed to strike 
out the word "Protestant" and insert the word "Christian," thus 
prohibiting only those who "denied the truth of the Christian 
religion" from holding such offices. A number of delegates 
took part in the debate, which took quite a wide range in the 
domain of doctrine, dogma and history. Many of the speeches, 
read in this day, are curious illustrations of the mental attitude, 
and operation of the mind of men of that time. It was expected 
that Judge Gaston would make a full and frank deliverance 
of his views. Colonel Creecy, the only person who heard the 
debate, whom I have heard describe it, says that, after a num- 
ber of speeches had been delivered, "most of them in favor of 
retaining the Thirty-second Article, Mr. Gaston slowly arose, 
and with great deliberation, amid breathless silence, and for two 
days, riveted the attention of all present, by a speech, which is 
unequaled in our memory. . . . The fate of the Thirty- 
second Article was sealed before the speech was completed." 

Judge Gaston said that this was the first opportunity which 
had come to him to make an explanation to the people of North 
Carolina of the circumstances under which he had accepted, and 
continued to occupy, the high judicial office which they had 
been pleased to confer upon him, and which some persons might 
doubt whether he was constitutionally qualified to hold. He 
proceeded to state, without calling names, the substance of the 
correspondence above referred to, concluding: 

One more remark on what may be regarded as the personal part 
of this discussion and I shall then cheerfully abandon it altogether. 
As a citizen of North Carolina, having a deep concern in her 
institutions and in her honor, I yield to no one in the interest 



William Gaston 37 

which I feel, that this question should be properly decided. But as 
an individual, I beg it to be understood that I am utterly indifferent 
as to the determination of the convention and of the people, except 
to desire that the constitutional provision be made perfectly ex- 
plicit. If it be thought essential to the good of the State that a 
monopoly of offices shall be secured to certain favored religious 
sects, let it be so declared. He who now addresses you, will not 
feel a moment's pain, should such a decision render it his duty to 
return to private life. Office sought him — he sought not office. 
Let him but know what is the constitution of his 
country and be it in his judgment wise or unwise, equal or unequal, 
he will, to the best of his understanding and ability, in his own 
case, and in all others, uphold and defend it. So he has often sworn, 
and as he acknowledges no power which can absolve, so he holds 
that no inducement of ambition or interest can excuse him from the 
exact and faithful fulfillment of this oath. 

He declared that had he made up his mind as to the course 
which he would pursue, if the Convention refused to make the 
provision clear, "he would not at this moment reveal the determi- 
nation to his nearest and dearest friend on earth." Among 
many basic truths forcibly and clearly stated, he said : 

Law is the proper judge of action, and reward or punishment is 
its proper sanction. Reason is the proper umpire of opinion, and 
argument and discussion its only fit advocates. To denounce opinion 
by law is as silly and, unfortunately, much more tyrannical, as 
it would be to punish crime by logic. 

He quoted from Bancroft the example set by Lord Baltimore 
securing religious freedom, in founding his colony in Maryland, 
saying : 

The next example of religious freedom secured in the original and 
fundamental institutions of a State, was given to the world by the 
great and amiable Roger Williams, the founder of Rhode Island. 
This extraordinary man, at the age of thirty had 
matured a doctrine which secures to him imperishable fame. 
He announced his discovery under the simple propo- 
sition of the sanctity of conscience — the civil magistrate should 
punish crime but never control opinion — should punish guilt, but 
never violate the sanctities of the soul. 

Gaston's speech abounds with large liberal views and opin- 
ions; it is a manly, frank, courageous defense of his position. 
There is a total absence of any apology, in the usual sense in 



38 William Gaston 

which the word is used. Colonel Creecy says that, at times, 
and with reference to certain innuendoes, made by a few dele- 
gates Gaston was quite severe. To the plea made by one of the 
delegates that he regarded himself as instructed by his constitu- 
ents to retain the prescriptive clause, Gaston made some perti- 
nent and very sound observations on the doctrine of instructions. 
It so happened that in the county from which this delegate came, 
the record contradicted his contention and rendered quite ridicu- 
lous his claim that he was unable to vote for the proposed 
amendment. The venerable President said : 

To him it appeared too plain a question to argue that every man 
may worship God according to the dictates of his own conscience. 
But it is a practical denial of its truth to debar a man from office 
because he may entertain certain religious opinions. There was a 
member of this convention whose father had been inhumanly mur- 
dered by the Tories in our Revolutionary struggle — he begged pardon 
for the allusion, but it was history — and shall it be said that his son, 
baptized, as it were, in the blood of his father, was unworthy a 
seat in our Legislature? 

The proposed amendment was adopted by a vote of 74 to 51. 

Judge Gaston's speech was widely circulated as a noble 
defense of religious freedom. Mr. George Bancroft wrote, 
thanking him for honorable mention and "still more what I 
value more highly than praise from a man whose name 
I have never heard mentioned but with praise, that what I had 
written furnished an argument favorable to intellectual liberty. 
It is the highest reward to which I could have aspired. . . . 
On reading your speech I could not but say how much my heart 
is with the cause which you defended and how deeply I was 
moved by finding myself summoned as a witness in its defense." 
Chancellor Kent wrote that he had read the speech and said: 
"I highly approve of its logic and admire the whole texture 
and taste and candor and eloquence of its production. You 
have placed the Catholic faith in a strong point of view." 
Other commendations from distinguished sources came to him. 
This was a fitting conclusion of Judge Gaston's parliamentary 
labors. He never again sat in a legislative body. His last 
address before a public assembly was made at the Commence- 
ment of Princeton University in 1835, at which time the hon- 
orary degree of LL.D. was conferred upon him. 



William Gaston 39 

Invitations to deliver literary addresses at Yale College, 
Georgetown and other institutions of learning are found among 
his papers, all of which he declined, giving as his excuse 
the demands made upon his time by his judicial work. He also 
pleaded advancing age. 

The Whigs having elected a majority of the General Assem- 
bly of 1840, a desire to elect him to the United States Senate 
was generally expressed. Hon. Richard Hines wrote him that 
since the late election he had been much in the middle and 
eastern parts of the State, and a little in the western, and took 
pleasure in saying that he believed it to be the unanimous wish 
of the Whigs, both in and out of the Legislature that "you 
should be one of our Senators in the next Congress of the United 
States. There is no doubt the Legislature will take pleasure in 
electing you." Hon. John G. Bynum, who was a member elect 
from the west, wrote him that it was the unanimous desire of 
the people of that section that he should be their Senator. In 
his reply to these gentlemen, declining to be a candidate, he 
said : 

I confess that, although my mind was fully made up before I re- 
ceived your letter, and although I had previously made known this 
determination to other friends who had addressed me on the sub- 
ject, I feel embarrassment and pain in being obliged to say to you 
that I must decline a compliance with your wishes. I am appre- 
hensive lest my conduct should appear morose or uncourteous — lest 
I should subject myself to the imputation of insensibility to kind- 
ness, or indifference to the public welfare. . . . With all my 
exertions to tame down feelings to the standard of reason, I find 
my heart yet throbbing with emotion at any indication of favorable 
opinion of my fellow citizens and that heart will have wholly . 
ceased to beat before I cease to take a warm interest in the happi- 
ness of this glorious Union, and especially of our part of it — the good 
Old North State. . . . Besides, I believe the faithful per- 
formance of the duties of my present office is as important to the 
public welfare as any which it would be within my power to 
render in the political station to which you invite me. To give 
a wholesome exposition to the laws, to settle the fluctuations and 
reconcile the seeming conflicting analogies of judicial decisions, to 
administer justice in the last resort, with a steady hand and upright 
purpose, appears to me among the highest of civil functions, and so 
long as God spares me health and understanding to perform these 
faithfully, how can I better serve my country? 



40 William Gaston 

On December 20, 1840, Governor Graham, then United States 
Senator, wrote Judge Gaston that the North Carolina delega- 
tion had determined to urge upon President-elect Harrison the 
appointment of a citizen of this State as a member of his 
cabinet, or some other position of distinction "as befitting, if not 
due, to the State." He further wrote that "if he shall be dis- 
posed to gratify us and take our counsel in making a selection, 
we shall unanimously recommend your name, should he tender 
either the office of Secretary of State, or the mission to Eng- 
land or to France. . . . This letter will require no answer 
and is written without the knowledge of any other member of 
the delegation, as a mark of my regard." Judge Gaston 
promptly replied, saying: 

You are good enough to say that no answer is required and I 
have felt some difficulty in determining whether an answer ought to 
be returned to the communication. . . . But as the subject 
has been mentioned to me, and my silence might lead to mistaken 
inference, I have deemed it expedient and most consistent with 
frankness to say to you (leaving you at liberty to make such use of 
the information as you think proper) that I hope no such nomina- 
tion will be made. My reason simply is that on the one hand I am 
reluctant to appear churlish, or to give offense to the people of North 
Carolina, by rejecting public appointments — and, on the other, I 
have a sincere desire to keep aloof from political life for the residue 
of my days. 

The letter concludes with the assurance that if he had been 
a member of the General Assembly he "should most cordially 
have concurred in your election to the Senate." He had the 
satisfaction of seeing his long time and loyal friend, Mr. 
George E. Badger, called into the Cabinet as Secretary of the 
Navy. 

Judge Gaston's opinion regarding the relations which he 
thought should exist between judicial officers and partisan poli- 
tics, was very clearly and strongly expressed in a letter ad- 
dressed to a committee of gentlemen inviting him to attend a 
convention of the Whigs of Alabama, September 20, 1840. 
He said : 

Except by the exercise of my franchise as a voter, I abstain 
from taking any part in the partisan contest. Far be it, directly or 
indirectly, to censure the many excellent men who, similarly 



William Gaston 41 

situated with myself, entertain different notions as to the course 
of duty and propriety. But while I presume not to arraign their 
conduct, I must act upon my own conviction of what is right. It is 
a deeply rooted sentiment with the people of the "good Old North 
State" that their judges ought to keep aloof from political con- 
tentions. The unaffected respect that I feel for all those long settled 
and habitual opinions which give a character to the State, and 
which cannot be uprooted without injury to its fundamental in- 
stitutions, would of itself be sufficient to enjoin upon me obedience 
to the sentiment. But it comes also recommended to my judgment 
by considerations of high public expedience. 

During the remainder of his life he devoted himself exclu- 
sively to the performance of his judicial duties, finding relaxa- 
tion in correspondence with his daughters and the society of his 
friends. It is not possible to refer to his many able and inter- 
esting opinions. There are, however, a few Avhich stand out 
with special prominence and which demand notice. In State 
v. Davis, 15 1ST. C, 612, he states with admirable clearness, the 
duty of a Judge in conducting a trial before a jury, saying: 

The task allotted to the presiding judge is confessedly one of great 
difficulty and delicacy. He is to rescue the case from the misrepre- 
sentation and misconception of the evidence, and from the false 
glosses put upon it by ardent and ingenious advocates, he is to pre- 
sent a fair, full and impartial statement of the evidence as applicable 
to the matter in controversy; he is to collect the testimony of con- 
curring and conflicting witnesses and indicate the presumptions or 
inferences previously formed on such occasions, generally found 
to be accordant with truth. 

In the celebrated case of State v. Will, 18 1ST. C, 121, in which 
a negro slave had been convicted of murder for the homicide of 
his overseer, under circumstances of great aggravation and 
reasonable apprehension of his life, reversing the judgment 
of the Court below, in which it was held that, as a matter of law, 
the prisoner being a slave, malice was presumed, Gaston said : 

In the absence, then, of all precedents directly in point, or strik- 
ingly analogous, the question recurs, if the passion of the slave be 
excited into unlawful violence, by the inhumanity of the master, or 
temporary owner, or one clothed with the master's authority, is it a 
conclusion of law that such passion must spring from diabolical 
malice? Unless I see my way clear as a sunbeam, I can not be- 
lieve that this is the law of a civilized people, and a Christian land. 



42 William Gaston 

I will not presume an arbitrary and inflexible rule so sanguinary 
in its character, and so repugnant to those holy Statutes "which 
rejoice the heart and enlighten the eye, and are true and righteous 
altogether." If the Legislature should ever prescribe such a law, 
a supposition which can scarcely be made without disrespect, it 
will be for those who then sit in the judgment seat to administer it. 
But the appeal here is to the common law, which declares passion, 
not transcending all reasonable limits, to be distinct from malice. 
The prisoner is a human being degraded indeed by slavery, but yet 
having "organs, dimensions, senses, affections, passions, 'like our 
own.' "... Express malice is not found by the jury. Prom 
the facts I am satsified, as a man, that in truth malice did not in 
fact exist, and I see no law which impels me, as a Judge, to infer 
malice contrary to truth. 

In State v. Manuel, 20 N". C, 601, Judge Gaston, writing 
for the Court, held that a manumitted slave was a citizen of the 
State. After a historical review of the status of persons in 
the colony, prior to the separation from England, he says : 

Upon the Revolution, no other change took place in the law of 
North Carolina, than was consequent upon the transition from a 
colony dependent on a European King to a free and sovereign State. 
Slaves remain slaves. British subjects in North Carolina become 
North Carolina freemen. Foreigners, until made members of the 
State, continued aliens. Slaves manumitted became freemen, and 
therefore, if born within North Carolina, are citizens of North 
Carolina, and all free persons born within the State are born 
citizens of the State. 

The opinion is cited as "sound law" by Judge Curtis in his 
dissenting opinion in the Dred Scott Case. Professor "Wig- 
more refers to Gaston's opinion in Clary v. Clary, 24 1ST. C, 78, 
as "the great lawmaking and argument-furnishing precedent." 

In a letter to his daughter he says that the Court has been 
engaged "during the entire week in the consideration of one 
case." An examination of our reports discloses hut two cases 
decided during Gaston's time on the Bench, which have been 
overruled. In both Judge Daniel dissented. I find but one 
dissenting opinion written by Judge Gaston. In State v. Miller, 
18 1ST. C, 500, in an opinion of which Chancellor Kent wrote: 
"That it appears to me to be a piece of close, logical, forcible, 
analytical, critical and irresistible reasoning and investigation 
of the principles of law and of the authorities applicable to the 



William Gaston 43 

case," lie insisted that any separation by the jury in a capital 
case invalidated the verdict. It is probable that his fear of 
invasion of well defined and clearly established rules of proce- 
dure carried him to an extreme view in this case. He said : 

Separation of the jury was never allowed, as far as I can see, in 
any capital case, unless necessity required it. One of the 

duties of Judges is to hand down the deposit of the law, as they have 
received it, without addition, diminution or change. It is a duty, 
the faithful performance of which is exceedingly difficult. They must 
refrain from any attempt at novelties, listen to no suggestion of ex- 
pediency, give in to no plausible theories and submit to be deemed 
as old fashioned and bigoted formalists when all around are running 
on a supposed career of liberal improvements. 

During the eleven years that he was on the Bench but few 
dissenting opinions were filed by any of the judges. 

Judge Gaston was, for forty-two years, a member of the 
Board of Trustees of the University of jSTorth Carolina. Mr. 
Phillips says that, although he resided quite a distance from 
Chapel Hill, he would visit that place in ordinary term time to 
attend the classes, although without special ties to any student 
there. "I particularly recollect his presence at six o'clock be- 
fore breakfast, at a recitation in the freshman room to which 
I then belonged." 

Dr. "William Hooper says: "Ever since I was a child of 
twelve years, wandering under the magnificent oaks that lend 
their useful shade to the students of Chapel Hill, the name of 
William Gaston acted like magic on my, and other, youthful 
minds. The news that he was to be at our approaching exami- 
nation, sent a tremor through the heart of the laggard, while it 
warmed, with an honest glow, the breast of the diligent student, 
who knew that he would have an auditor and a witness who 
could appreciate his merit as a scholar, and whose then dawn- 
ing reputation made even a smile of his thrilling to the soul. 
Well do I remember the day when a schoolboy, just entering 
my teens, I stood before a bar of trustees, of which he was the 
luminary, just then in the eastern horizon of his fame, begin- 
ning to give his country cheering auguries of his resplendent 
meridian." 

On January 23, 1844, in his office, while engaged in conver- 



44 William Gaston 

sation with Governor Morehead, Judge Ruffin, the Attorney- 
General, and several other friends, Judge Gaston was taken ill. 
A letter from Governor Morehead states that he had been indis- 
posed during the day, but was thought to have entirely re- 
covered. The gentlemen named had called at his office, after 
supper, and were engaged in conversation, in which Judge Gas- 
ton took part. Some reference being made to one, who at a party 
in Washington City, at the home of Joseph Gales, had said that 
he did not believe in the existence of God. Judge Gaston, with 
emotion and emphasis, declaring his faith in the Divine Ruler 
of the world and the truths of Christianity, fell back on the bed 
and expired. He who had, throughout his life held fast to the 
integrity of the "faith early instilled into his mind by maternal 
piety," passed away from earthly scenes, with a confession of 
that faith on his lips. 

Judge Gaston spent the time, while attending the Court, or 
in the discharge of other official duties in Raleigh, in the home 
of Mrs. Eliza Taylor, the wife, and for fifty years, as recorded 
on her tomb, the faithful widow of Hon. James F. Taylor, 
Attorney-General of the State. It was in the home of this ex- 
cellent, and during her long and useful life, highly honored, 
woman, that he wrote his judicial opinions. He occupied the 
office on the corner of Salisbury and Hargett streets. 1 It was 
there that the great leaders of the Bar, and other professions, 
governors, senators, law students, and all others who sought his 
society, met and found instruction and pleasure in his conversa- 
tion. It was there that he wrote the words of "The Old North 
State," set to music by the daughter of Mr. Taylor, a lady who, 
at a very advanced age, has, within the present year, passed 
away. She was probably the last survivor of those who had 
personal recollection of Judge Gaston, of whom, after a de- 
scription of his personal appearance, she said: "He was fond 
of children and every winter's evening when my mother did 
not have company, he would sing to us, or tell us tales from the 
Arabian Nights — before we were able to read them. When Tve 
were older he read Telemachus to us, translating from the 
French. He was an excellent French scholar. He taught us 
much of astronomy, taking us out of doors at night and show- 



ir The building was torn down to make room for a new building in the Autumn of 1914 



William Gaston 45 

ing us the different planets and constellations. He loved the 
society of young people." 

Mr. Phillips, in the address referred to, says: "Fond of the 
law, well bred and freshly read therein to his latest day, he was 
also distinctively a classical scholar and a man of letters — a 
forward promoter of higher education and, upon a wider field, 
an adviser and inspirer of students of the law. His finely 
chiseled features glowed with a benign serenity." 

Judge Gaston, for many years received in his home, students 
of the law for instruction. Among them were many who at- 
tained high professional and judicial position. In a letter from 
Raleigh to his daughter, he sends a message to two of his stu- 
dents saying that he expects them to come to Ealeigh for ex- 
amination and that "they must be prepared to tell Judge Daniel 
all about the old feudal tenures, when the Statute de donis was 
made, when and how lands became divisible, and what of the 
enactment and what the operation, of the Statute of Uses. 
They must be as perfect as they can in the second volume of 
Blackstone." 

His death evoked expressions of profound grief, high appre- 
ciation of his character, and affection for his person. The 
Attorney-General, in announcing the event to the Court, spoke 
with deep emotion, and the Chief Justice declared that the 
State had lost "a good man and a great Judge." 

Judge William H. Battle, by invitation of the two societies 
of the University of North Carolina delivered an admirable ad- 
dress upon his life and character. At Georgetown, Princeton 
and other institutions of learning eulogies were pronounced. 
The editors of the National Intelligencer said: "The Southern 
mail comes to us freighted with the painful intelligence of the 
death of the Hon. William Gaston, one of the Judges of the 
Supreme Court of the State of North Carolina, widely known 
in other States as an eminent statesman and one of the purest 
and most upright of men as well as a profound and accomplished 
jurist." 

In many counties public meetings were held and appropriate 
addresses were made. 

The members of the General Assembly unanimously adopted, 
and recorded on the journals of both Houses, resolutions expres- 



46 William Gaston 

sive of the loss sustained by the State in the death "of one of 
its most patriotic citizens, a faithful public servant and a 
learned and impartial judge." It was declared: "That in the 
course of a long and varied life, his bright career is left as an 
example worthy of imitation and his unsullied character one 
of the brightest jewels of the State." The State "has in- 
scribed his name on her towns and counties, and as long as 
talents are revered, services honored and virtue esteemed, the 
name of Gaston will be cherished." 

I have thought that none of the eulogies speak more elo- 
quently, or set forth more strongly, the virtues of William Gas- 
ton, the man, than those adopted by the "free people of color" 
of the town of his nativity, and his home. At a meeting held 
in St. John's Lodge, ISTew Bern, these people said : 

Others have spoken of him a;; a great statesman, a learned Judge, 
a ripe scholar. They are better judges of these things than we are; 
in our humble situation we shall confine ourselves to his walk 
among us. As our neighbor, our friend and kind protector, it is our 
privilege to speak from personal observation. Where so many vir- 
tues and graces are blended in the same individual it is not easy to 
particularize. Judge Gaston was an example in word and conversa- 
tion, in spirit and purity. He was the friend of the widow and the 
orphan — he was a kind and indulgent master . . . the most 
of his servants can read and write, the consequence is they are a 
most intelligent set of people. 

Judge Gaston was a friend of emancipation, he not only emanci- 
pated several of his own people, but he bought others and set them 
free. . . . He was a Christian in deed and in truth; his 
religion was not a thing of form and decencies, it was a pervading 
principle that entered into all his concerns, all his thoughts and all 
his hopes. His course was marked with no obliquity, his path was 
a shining light — the voice of calumny shrunk abashed at his presence. 

They resolved that they would "attend his funeral and walk 
in the procession" ; that they held themselves ready to join with 
their fellow-townsmen in subscribing funds to raise a suitable 
monument to his memory; that so soon as a correct likeness of 
him could be obtained, they would subscribe for a sufficient 
number to place one in the dwelling of every freeman in the 
town. 

Judge Gaston was married three times. His first wife, Miss 
Susan Hay, died within a year. His second wife was Miss 



"William Gaston 47 

Hannah McClure. His third wife, Miss Eliza Worthington, of 
Georgetown, died in 1819. During the last twenty-five years of 
his life he was unmarried. The descendants of his daughters 
reside in the State of New Jersey. 

Judge Gaston's only son, Alexander Gaston, left two sons, 
William, who after his graduation at West Point, entered the 
Army, and was killed in a battle with the Indians on the west- 
ern frontier.. Hugh Gaston, the other son, was mortally 
wounded in the battle of Sharpsburg. One who was with him. 
describing a charge of the Forty-eighth North Carolina Regi- 
ment, says : "Hugh Gaston, as true and brave a soul as ever 
died for liberty, was mortally wounded quite fifty yards beyond 
the fence." 

It is peculiarly appropriate that these statues of the great 
Chief Justice 1 and his associate, so closely related in their 
personal and official lives and services, both of whom, with 
their associate Judge Daniel, "administered justice in the last 
resort, with a steady hand, and an upright purpose," should 
stand as memorials of the past and inspiration to the future 
generation of North Carolina lawyers and judges. 

J A statue of Chief Justice Ruffin stands in the same building with the bust of Gaston . 



PRESENTATION 

By Hon. J. Crawford Biggs, President of the North 
Carolina Bar Association. 

The true student of history knows that North Carolina is 
rich in the great deeds of her sons, but until recent years no 
organized effort had been made to perpetuate her history. 
There is no higher or nobler duty than the cultivation of civic 
pride and it is a source of much gratification to all loyal North 
Carolinians to realize that the various patriotic organizers and 
the friends and relatives of the distinguished men of former 
generations are beginning to preserve in marble and bronze the 
lineaments of the illustrious dead. Every such act helps to 
place our Commonwealth in its true position among the States. 

The marble bust which I have the honor to present this even- 
ing was made from the original plaster cast which was executed 
from life in the year 1833 by a distinguished English sculptor, 
Ball Hughes who, while on a visit to this country, made busts of 
other distinguished American citizens, among them, John Mar- 
shall, Daniel Webster, Alexander Hamilton, and Martin Van 
Buren. But for the burning of the State House in 1831 we 
would not have this bust. This fire on the 21st of June burned 
the Capitol here and completely destroyed Canova's celebrated 
Statue of Washington. On the 27th of June, 1831, the English 
sculptor, being at that time in this country and learning of the 
destruction of the statue, wrote Hon. Thomas P. Devereux and 
offered his services for the restoration of that invaluable work. 
Later Mr. Hughes visited Kaleigh and on the 7th of December, 
1831, wrote Governor Stokes that he had carefully examined 
the extent of the injury to the statue and that he could restore 
it to all of its former beauty and invest it with all of its original 
grandeur. The Governor sent a message to the Legislature with 
reference to the proposition of Mr. Hughes and a select com- 
mittee, to which the message was referred, made a report 
through Judge Gaston recommending that a contract be made 
with Mr. Hughes for the restoration of the statue. The report 
was adopted by the Legislature and contract was accordingly 
made and Mr. Hughes in May, 1832, undertook the work. But 
shortly after the execution of the contract, he left Raleigh and 



William Gaston 49 

for more than a year did nothing towards the restoration of the 
statue. In 1833 Judge Gaston called to see Mr. Hughes at his 
studio in New York and wrote Governor Swain on the 21st of 
November, that he had conversed with him freely in relation 
to his unexecuted contract of restoring the statue of Washing- 
ton. It was doubtless on the occasion of this visit that the 
plaster cast of Judge Gaston was made. Hon. Louis D. Henry, 
a prominent attorney of this State and Democratic candidate for 
Governor against Governor Morehead, was requested by Gov- 
ernor Swain to act as his agent in ascertaining what progress 
the sculptor was making on the work of restoring the statue of 
Washington. Mr. Henry in 1834 visited the sculptor in his 
studio in New York and after advising the Governor that Mr. 
Hughes promised to carry out his contract, wrote as follows : 

Mr. Hughes is a man of genius in his profession, the beau ideal 
of enthusiasts. I called upon him at his workshop. He received 
me with great politeness and took great pains to show me all of his 
works then in different stages of progress. I admired all, but more 
particularly his statue of Alexander Hamilton and bust of our friend, 
Mr. Gaston. The bust of Mr. Gaston is the most admirable likeness 
and truest to nature and the original of all the works of painting or 
statuary I have ever seen. I pointed it out in an instant, although 
I had upon the first recognition but an askance view and was igno- 
rant that such a work was there or in contemplation. May I venture 
a passing suggestion that so admirable a likeness of a man who is 
universally esteemed and who is in fact so great an ornament to 
our State ought to be set up in the room of our State House or in 
the room of our Supreme Court? If the Legislature will not, I am 
clear the Bar should by permission of the Legislature. 

I believe the work was undertaken by Mr. Hughes of his own 
accord. 1 

The replica to be unveiled tonight was made from the original 
cast of Mr. Hughes by Mr. F. II. Packer the sculptor of the 
Bagley Statue and of the statue of Chief Justice Thomas 
Ruffin which will be presented soon by the Bar Association to 
the Supreme Court. 

On behalf of the North Carolina Bar Association, it gives 
me great pleasure to present to the State of North Carolina 
this bust of Judge Gaston as a memorial of their regard and 
veneration for his services to his native State. 



'Connor, R. D. W.: Canova's statue of Washington, Publications of the North Caro- 
lina Historical Commission, Bulletin No. 8. 



ACCEPTANCE 

By Governor Locke Craig 

We have listened with delight and profit to the scholarly, 
masterful and sympathetic portrayal of the character of Wil- 
liam Gaston. We have heard the elegant and graceful presen- 
tation of the marble bust. 

The State accepts this statue, and with gratitude to the Bar 
Association of North Carolina. It will be placed in one of the 
halls of the Administration Building, there to dwell through the 
coming centuries with the portraits and the statues of those 
who have ennobled the State, and contributed to the strength 
and glory of the English speaking race. 

William Gaston has of right a place in this Pantheon of our 
great men, — primus inter pares. His profound mind was en- 
larged and adorned by the erudition of the student, and the 
culture of the man of letters. As orator, statesman and judge, 
he was among the very foremost, and devoted all of his splendid 
gifts and attainments to the service of his country, and to the 
service of men. He belonged to the highest order of nobility, 
and ever maintained his ideals and his character in exalted 
purity. He set the highest standard for private place and for 
public office. He gave a tone to the life of the State in the 
time of her youth that vitalizes and strengthens her now, and 
aspire to higher things, will look upon this statute to remember, 
cherish him, for he is to us an inheritance more precious than 
wealth or rich gifts, or princely endowments. 

The men and the women of this and other generations, who 
aspire to higher things, will look upon this statue to remember 
to admire, and to emulate his life. 




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